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Tuesday, July 1, 2014

MERS GETS A BEATDOWN IN PENNSYLVANIA FEDERAL COURT

What exciting news! Just reading the two-page Order was enough to send chills down my spine!

Oh … don’t worry. MERS and its parent MERSCORP are arrogant enough to
appeal this decision because it involves some huge repercussions for
them in the State of Pennsylvania. I could just hug County Register of
Deeds Nancy Becker for this one! She’s the public official who stood
up to the electronic database and its owner who continue to make a
self-righteous mockery of the county recording systems across America!
Well … at least not in Pennsylvania according to Judge Curtis Joyner.

You see, Pennsylvania has some interesting statutes (which it appears MERS and its parent think they can ignore):

§351. Failure to record conveyance

All
deeds, conveyances, contracts, and other instruments of writing wherein
it shall be the intention of the parties executing the same to grant,
bargain, sell, and convey any lands, tenements, or hereditaments situate
in this Commonwealth, upon being acknowledged by the parties executing
the same or proved in the manner provided by the laws of this
Commonwealth, shall be recorded in the office for the recording of deeds
in the county where such lands, tenements, and hereditaments are
situate. Every such deed, conveyance, contract, or other instrument of
writing which shall not be acknowledged or proved and recorded, as
aforesaid, shall be adjudged fraudulent and void as to any subsequent
bona fide purchaser or mortgagee or holder of any judgment, duly entered
in the prothonotary’s office of the county in which the lands,
tenements, or hereditaments are situate, without actual or constructive
notice unless such deed, conveyance, contract, or instrument of writing
shall be recorded, as aforesaid, before the recording of the deed or
conveyance or the entry of the judgment under which such subsequent
purchaser, mortgagee, or judgment creditor shall claim. Nothing
contained in this act shall be construed to repeal or modify any law
providing for the lien of purchase money mortgages.

So Judge Joyner succinctly, as paraphrased, put it to them both like this(my comments are in italics):

AND
NOW, this 30th Day of June, 2014, upon consideration of the Motion for
Summary Judgment of Defandants, MERSCORP, Inc. Mortgage Electronic
Registration Systems, Inc. (the Judge appears confused even about the name of the parent) and
Plaintiff’s Cross-Motion for Partial Summary Judgment and the parties’
further Memoranda of Law in Support and in Opposition, it is hereby
ORDERED that Defendant’s Motion is DENIED in its entirety (smack down!) and Plaintiff’s Motion is GRANTED IN PART as outlined in the preceding Memorandum Opinion.

IT IS FURTHER ORDERED that Declaratory Judgment is hereby entered in favor of the Plaintiff (where the Judge declares something to be true)
and against Defendants such that Defendants’ are declared to be
obligated to create and record written documents memorializing the
transfers of debt/promissory notes which are secured by real estate
mortgages in the Commonwealth of Pennsylvania for all such debt
transfers past, present and future in the Office for the Recording of
Deeds in the County where such property is situate. That
would mean that the judge thinks the MERS business model does not
comport with the recording statutes as it applies to ALL counties in the
Commonwealth!

IT
IS STILL FURTHER ORDERED AND DECLARED that inasmuch as such
debt/mortgage note transfers are conveyances within the meaning of
Pennsylvania law,the failure to so document and record is violative of
the Pennsylvania Recording Statute(s). Nothing in this act shall be
construed to repeal or modify and law providing for the lien of purchase
money mortgages.

So
… it appears that MERS’ business model has failed in the State of
Pennsylvania. Quick, OCC, Fed, OTS and all you other acronyms … if you
think you can get a national mortgage registry into effect and conduct
the same obfuscating practices that MERS and MERSCORP appear to have
done … you’ll answer to Judge Joyner too!

Onto the rest of the battle … The Memorandum!

In
virtually every battle waged by MERS and its parent, the attorneys
argue whatever will keep them “in the game”, or in this case”, out of
the crosshairs of the court. The Memorandum, in all of its 45-page
glory, outlines the insistences of MERS and its attorneys that it has
rights and privileges, which I’m still trying to figure out
contractually (as compared to the Robinson case in California) how MERS
and its “signors” have the rights to do anything, especially with an
“alleged corporate resolution” that gave Bill Hultman the capacity to
appoint all of these “Certifying Officers”, who turn out to be nothing
more than $10 an hour employees of MERSCORP member-subscribers and not
the real “officers” themselves!

Pages
28-34 of the Memorandum go into detail about MERS’ agency relationship
with its members. Despite what MERS tried to downplay in court, Judge
Joyner said:

We
likewise reject the proposition that MERS is not subject to liability
because it is only an agent for its member-lenders. Indeed, as a
general matter, an “agent” is a “person authorized by another
(principal) to act for or in place of him; one intrusted with another’s
business.

Gee,
if that’s the case, what Prof. Christopher Peterson stated about MERS’
potential liabilities for its actions appears to be shaking the rafters
in Reston, Virginia right about now! Unlike the Agard case, where Judge
Grossman eviscerated MERS like a chicken with its head cut off, Judge
Joyner appears to accord MERS with all the agency rights it claims to
have … and then some, to the point where Billy and the Bad Boys get
their feet held to the fire! What’s more damning is the following line
from the Memorandum:

An agent holds the power to alter the legal relations between the principal and third persons.

Did
you get that folks? MERS is now in the cross-hairs of every
Pennsylvania homeowner whose chain of title has been dissed by this
business model. If I were a Pennsylvania homeowner, you know what I’d
be drafting up right about now for filing. Imagine … the suits in
Pennsylvania alone could bankrupt MERS and MERSCORP in legal fees alone,
not to mention the damage awards for statutory violations … and in this
case, willful and wanton as the Judge seems to indicate! The judge’s
Memorandum, at the bottom of Page 34, states that MERS may alternatively
be held responsible as an undisclosed agent of the lenders for whom it
was acting as “nominee”. So Count I stands against MERS and MERSCORP as
to their liability for violating the Pennsylvania Recording Statutes! Yippee!

Based
on what I’m reading from Pages 35 on … MERSCORP members might want to
think about getting OUT OF the MERS System! Your little scheme, now
that it has been ruled as statutorily violative, can now also be used
against you and your little “pissant agent” in front of the grand jury.
Notice to agent is notice to principal!

It’s
always nice to see Marie McDonnell get a mention … however, I could
have told the Court that the MERS Milestone records are as inadequate
and as obfuscating as the MERS Servicer ID database itself! Congrats on
the mention, Marie! (Page 37)

As
to Nancy Becker’s comments about “Recorders of Deeds making sure that
the chain of title of properties in their county is clear and complete” …
there are over 3,000 counties in the U.S. and I can count the number of
recorders on one hand that really give a shit about what MERS has done
to their real property records. Like I said before … if you let this
bunch of self-proclaimed hoodlums in corporate veils continue to trash
your land records, you might as well close up shop because your records
won’t be worth keeping!

Hmmm
… sounds like a few counties could stand to have their records audited.
If you’re in Pennsylvania, you might want to put a call into your
county Register of Deeds and bite on their earlobe for an hour about
their nonfeasance of office!

Personally,
Nancy (Becker), I think you’re county has lost three times what the
memorandum says you lost in recording fees! So, Judge Joyner really
hammered MERS with the Count III for unjust enrichment. Anyone want an
audit to see how much money MERS owes you? This Count is going to
trial folks!

Our website iswww.dkconsultants.us.
Forward this blog post to your Pennsylvania Recorder NOW! We would
be happy to discuss auditing your records. In fact, if we find anything
criminal? Well, we’ll see where that leads.

If
I were MERS Certifying Officers or their acknowledging notaries, I
think I’d be sweating bullets right now, in light of this ruling!

All in all … it was a good day for the little guy and an even bigger day for Nancy Becker!

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